Ms Tarra Richter v Scottridge Holdings Pty Ltd trading as Super Safe Scaffolds
[2013] FWC 2116
•16 APRIL 2013
[2013] FWC 2116 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Application for unfair dismissal remedy
Ms Tarra Richter
v
Scottridge Holdings Pty Ltd trading as Super Safe Scaffolds
(U2012/12275)
DEPUTY PRESIDENT SMITH | MELBOURNE, 16 APRIL 2013 |
Sections 725 and 732—proceedings in two jurisdictions—application for costs.
[1] Ms Tarra Richter alleges that her employment was terminated on 7 August 2012 by Scottridge Holdings Pty Ltd trading as Super Safe Scaffolds (Scottridge).
[2] Scottridge submitted that there was no termination at the initiative of the employer.
[3] The matter proceeded in the usual way and came before His Honour Deputy President Hamilton on 13 December 2012. At that time Scottridge raised a preliminary jurisdictional argument, conceding at the time it was a new point [transcript PN161]. It was argued that as Ms Richter had lodged a matter in the Victorian Civil and Administrative Tribunal (VCAT) ss.725 to 732 of the Fair Work Act 2009 (the Act) came into play.
[4] Those sections preclude an application being made in circumstances where another application has been made under another law where the application has not been withdrawn or failed for want of jurisdiction. It also appears from the decision in Ilardo v. Rail Corporation of New South Wales T/A RailCorp [[2010] FWAFB 6473] that s.725 is ambulatory in character.
[5] Counsel for Scottridge advised His Honour that the application was lodged on 10 December and he had clarified the question “late last night”. [Transcript, PN173] Discussion took place between the Deputy President and Counsel representing Ms Richter and it became clear that:
● an application had been made; and
● it had not been withdrawn or failed for want of jurisdiction.
[6] Further, it was made clear that if the matter did not proceed under the Fair Work Act 2009 then the matter would continue in VCAT.
[7] His Honour foreshadowed the difficulties faced by the applicant at which time counsel for Scottridge made an application for costs.
[8] His Honour then decided the matter:
“I am in a position to give my decision now. An application pursuant to section 394 for an unfair dismissal remedy under the Fair Work Act 2009 has been lodged by Ms Tarra Richter. Secondly, as exhibit S1 indicates, an application under another law has been made on behalf of Ms Richter within section 732(1)(a). Thirdly, the application or complaint has not been withdrawn or failed for want of jurisdiction. The application under another law is an application or complaint made under the law of the Commonwealth and/or a law of a state. This is a matter of agreement before me.
Section 725 of the Act provides that a person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies. It is agreed before me that section 732 applies. It is also agreed that section 725 requires me to dismiss this present matter. I will therefore dismiss the matter and I will issue an order to that effect today.
In relation to any costs for orders sought by the respondent, I direct them to file an application within seven days and served on the applicant. Is there anything else?”
[9] Following the decision an application for costs was made by Scottridge Holdings against both Mr Bingham and Ms Richter pursuant to s.401(1A)(a).
[10] Scottridge relied upon an offer for settlement on 5 December 2012 and the concessions made during proceedings before His Honour.
[11] In relation to the application made against Mr Bingham, Scottridge submitted:
“An order may be made against Mr. Bingham pursuant to s.401(b) for all costs incurred by the Respondent after the service of the VCAT application on the Respondent on 10 December 2012. This includes the preparation for the hearing on 13 & 14 December 2012 and attendance for the hearing on 13 December 2012.
The Respondent amongst other matters refers to and relies upon:
35.1 The circumstances that were ameliorated at FWA, including the filing and maintaining of the VCAT application on 10 December 2012.
35.2 The failure to discontinue the proceedings at FWA prior to the filing of the VCAT application or upon its filing.
35.3 The failure to draw to the attention of FWA that an application had been made to the VCAT.
35.4 The fact that the jurisdictional problem of multiple actions had been raised by Mr. Bingham and discussed with his client the Applicant Ms. Richter.” 1
[12] In making the costs application against Ms Richter, Scottridge relied on its view that the case lacked merit and that the offer of settlement was unreasonably refused.
[13] In response to the application Ms Forsyth for Mr Bingham recited some of the history of the matter involving the conduct of the conciliation and the letter of offer on 5 December.
[14] In the written submissions:
“By the admission of counsel for the Respondent during the hearing on 13 December 2012, he has foreshadowed an application for dismissal of the matter based on the operation of section 732 of the Act. However, rather than placing the Applicant and Mr Bingham himself on notice of the Respondent’s intention to seek a dismissal of the matter on the basis of section 732, the Respondent instead refused to participate in mediation and instead decided to incur the expense of appearing at the arbitration on 13 December 2012 (and unreasonably putting the Applicant to expense in doing so) with the clear aim of having the application dismissed and seeking an order for costs.” 2
[15] The written submissions stated that had Scottridge put both himself and the applicant on notice of the application, they would have been in a position to assess the situation and determine the appropriate course.
[16] It was submitted that as at 13 December 2012 neither he nor his client had been advised as to whether or not the VCAT application had been accepted for filing. It is submitted that Mr Bingham became aware of the existence of s.732 the evening of 12 December but was of the view that both proceedings could proceed concurrently.
[17] During the proceedings Ms Forsyth argued that Mr Bingham made a mistake and when challenged by His Honour Deputy President Hamilton, he accepted the position. Ms Forsyth argued strongly that such a mistake should be understood and that no costs should be awarded.
[18] In my view this is a weak case to the awarding of costs against Ms Richter. Mr Bingham is another matter.
[19] Section 611 provides that generally a person must bear their own costs in relation to a matter before FWA. However the Commission is given a discretion to make an order for costs against a person if it is satisfied that the person made an application vexatiously or without reasonable cause or the application had no reasonable prospects of success.
[20] Section 611 is in the following terms:
“611 Costs
(1) A person must bear the person’s own costs in relation to a matter before the FWC.
(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.
Note: The FWC can also order costs under sections 376, 400A, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4-1).”
[21] Section 402 deals with the making of applications for costs orders in matters arising under Part 3-2 of the Act. The section provides as follows:
“402 Applications for costs orders
An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:
(a) the FWC determines the matter; or
(b) the matter is discontinued.
[22] In A Baker v. Salva Resources Pty Ltd, a Full Bench of FWA summarised the approach to be taken in relation to subsection 611(2)(b) of the Act as follows:
“[10] The concepts within s.611(2)(b) ‘should have been reasonably apparent’ and ‘had no reasonable prospect of success’ have been well traversed:
● ‘should have been reasonably apparent’ must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and
● a conclusion that an application ‘had no reasonable prospect of success’ should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or lacking in merit or substance as to be not reasonably arguable.”
[23] In relation to costs sought against Mr J. Bingham, Ms Richter’s lawyer, s.401 of the Act provides:
“401 Costs orders against lawyers and paid agents
(1) This section applies if:
(a) an application for an unfair dismissal remedy has been made under section 394; and
(b) a person who is a party to the matter has engaged a lawyer or paid agent (the representative) to represent the person in the matter; and
(c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.
(1A) The FWC may make an order for costs against the representative for costs incurred by the other party to the matter if the FWC is satisfied that the representative caused those costs to be incurred because:
(a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or
(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.
(2) The FWC may make an order under this section only if the other party to the matter has applied for it in accordance with section 402.
(3) This section does not limit the FWC’s power to order costs under section 611.”
[24] I shall deal with Ms Richter first. There is nothing in the materials which demonstrates that the merit aspect would be bad beyond argument. Many of the issues raised relied upon contested evidence.
[25] Even in circumstances where an applicant loses a case costs do not automatically follow.
[26] I find that the material does not disclose that the applicant had no reasonable prospect of success or that it was raised vexatiously or without reasonable cause.
[27] I announced at the hearing of the matter that I dismissed the application in so far as it relates to Ms Richter. These are my reasons.
[28] The decision to lodge in VCAT was done transparently but nonetheless it had the effect of bringing the proceedings in the Commission to an end. Mr Bingham apparently was not altered to the potential problem by the question on the VCAT form which asked if a complaint had been made in Fair Work Australia.
[29] It appears however that Mr Bingham gave some consideration to the problem of multiple actions [Transcript, PN280] but made a conscious decision to continue with the application. Before His Honour, Mr Bingham sought to raise an argument that the applications dealt with different conduct. His Honour then drew his attention to the provisions of the Fair Work Act 2009 (the Act).
[30] To begin, I am satisfied that an application for an unfair dismissal remedy has been made under s.394 of the Act.
[31] I now must consider the provisions of s.401(1A) and whether or not I am satisfied that:
(a) the representative encouraged the person to start, continue or respond to the matter and it should have been reasonably apparent that the person had no reasonable prospect of success in the matter; or
(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the matter.
[32] There is some evidence that Mr Bingham encouraged Ms Richter to continue the matter as he confirmed his instructions to proceed with both applications. However, the information on whether or not Mr Bingham was acting on instructions or encouraging Ms Richter to continue is scant.
[33] It was not put by Ms Forsyth that Ms Richter gave instructions against the advice of Mr Bingham and no evidence was called. Opportunities were given during the proceedings for evidence to be led or otherwise it is open to me to draw an inference that evidence from Mr Bingham might not have helped his case. 3
[34] Mr Bingham was granted leave to appear in the jurisdiction pursuant to s.596 of the Act. For those granted leave it is expected that they will assist. It was submitted that Mr Bingham made an error, however the nature of the error was not one which could be reasonably argued given the factual matrix of this case. It should have been reasonably apparent to Mr Bingham that by making the application to VCAT he had no reasonable prospect of success in the matter before the Commission.
[35] On this basis I find that costs should be awarded against Mr Bingham. The issue now is: what costs should Mr Bingham be liable to pay?
[36] It is clear that the action taken on 10 December brought the proceedings to an end in the Commission. So much is so from Mr Bingham’s submission that the VCAT application would be pursued. It was a considered position and the VCAT jurisdiction would not be abandoned to make way for a hearing in the Commission [see Transcript PN282].
[37] Scottridge submitted that Mr Bingham should be liable for all costs incurred in the case because of his actions. Ms Forsyth argued that if I was against her on whether or not costs should be awarded against Mr Bingham then costs should only arise from 10 December 2012.
[38] I agree with this proposition. If, for example, Mr Bingham had, on instructions decided to lodge with VCAT and then withdraw the application before the Commission it would not have attracted the operation of s.401(1A)(a) as it could not be concluded that Ms Richter had no reasonable prospect of success. The reasons given for dismissing the application against Ms Richter are apposite here.
[39] The question would have been whether or not Mr Bingham had engaged in an unreasonable act or omission in connection with the conduct or continuation of the matter.
[40] The timing of any withdrawal may have been the subject of argument but the actual withdrawal of the application may have been correct in all the circumstances.
[41] Therefore I shall only award costs against Mr Bingham from 10 December 2012. The parties should consult and advise me if agreement is reached. If not, I shall accept written submissions. The parties can determine the schedule but all submissions should be lodged by 24 May 2013.
DEPUTY PRESIDENT
Appearances:
A. Halse of counsel on behalf of Scottridge Holdings Pty Ltd trading as Super Safe Scaffolds.
A. Forsyth of counsel for Ms T. Richter and Mr J. Bingham.
Hearing details:
2013.
Melbourne:
April, 8.
1 Paragraph 35 of the written submissions of Scottridge Holdings Pty Ltd dated 18 December 2012.
2 Paragraph 16 of the written submissions of Tarra Richter dated 3 April 2013.
3 Jones v. Dunkell (1959) 101 CLR 298
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